No. 85-371 

IN THE SUPREKE COURT OF TEE STATE OF MONTANA 

1985 

LLOS PARKER, 

Plaintiff and Appellant, 

WALKER TEN EYCK KEED, 111, s.r:d 

RARBARA EREWSTER, 

Cefendants and P-espcndents. 

APPEAL E'RGM: Dj.str.ict Court of the Eighteenth Judicial District, - and for the County of Gallatin, 

The Honorable Thomas Olson, Zudge presiding. 

COUNSEL OF RECORD: 

For Appe I. I arit : 

Nash & Nash; Donald Nash, Bozeman, filantana 

For Respondent : 

Goetz, Kadden & Dunn; James H. Goetz, Eczeman, Kontana 

- - - . . - -. 

Submitted on Briefs: Oct. 25, 1985 

Decided: January 27, 1986 

Filed: 

CI +& 4..Jd9 '-D ~j?, 

. . - - -- .- - Clerk 
Mr. Justice William E. Hunt, Sr., d.el.ivered the Opinion of 

the Court. 

Parker appeals an order of the Gallatin County District 

Court d-enying Parker's motion for summary judgment and 

granting Weed ' s and Erewster ' s motion for summary judgment. 

Reversed and remand-ed with instructions. The sole issue 

on appeal is whether a right of first refusal violates the 

Nontana rule against perpetuities, SS 70-1-40', -408, MCA. 

The facts of this case are not in dispute. On April 19, 

1984, Parker signed a document entitled "First Right of 

Refusal. " Parker was designated "GRANTORu and Weed and 

Brewster were designated "GRANTEES." The agreement contained 

the following pertinent statements: 

GRANTOR agrees not tc sell, transfer or assign all 

or any part of their interest in the 

above-described real estate (to other than his 

children or grandchildren) unless such interest 

shall have been first offered to GRANTEES for sale 

and purchase by them in accordance with the 

following provisions: 

(a) GRANTOR shall first offer to sell the 

above-described real estate tc GRANTEES at the same 

price and upcn the same terms and conditions as 

would govern upon a transfer to a third 

party . . . . 

(d) This First Right of Refusal is binding upon 

the heirs, personal representatives, 

zdministrators, successors, and assigns of each of 

the parties hereto. (including any children or 

grandchildren Transferees of the Gramtor.) 

'Material in parenthesi s interlineated in 

handwriting in original document. l 

ICeed and Erewster recorded this agreement a.t the 

Gallatin County Clerk and Recorder's Office on April 23, 

Gn August 3 1984, Parker filed a conplaint against 

Weed and Erewster seeking a declaratory judgment voiding the 

coritract between the parties which contained the right of 
first refusal alleging the contract violat-ed the rule zgainst 

perpetuities. 

On February 6, 1985, Parker filed a motion For summary 

judgment. On March I.]., 1385, Erewster and Weed also filed a 

motion for summary judgment. The issues were briefed by both 

parties, and on Karch 15, 1985, a hearing was hel-d. 

On Yay 30, 1985, the Cistrict Court issued en order 

cjrantirg Weed's and Erewster's motion for summary judgment. 

It held that the right of first refusal was not a property 

interest so the rule against perpetuities did not apply to 

the preemption agreement. 

We faced z nearly identical situation in the case of 

Hardy v. Krutzfeldt (Mont. 1983), 672 P.2d 274, 40 St.Rep. 

1823. In that case, Hardy sought a declaratory judgment that 

a preemptive clause was invalid as an unreasonable restraint 

cn alienation. The Cistrict Court granted Krutzfeldt's 

motion for suFmary judgment and Fardy appealed. We held that 

the facts or the case presented no justiciable controversy 

over which the judicizl power to determine real controversies 

extended. As we stated in Ezrdy: - 

The only thing before this Court in this case is a 

difference of opj-ninn among lawyers on the legal 

effect of the preemptive first refusal clause. We 

dc not have before us any litigants involved in an 

actual controversy who are deprived of a. property 

right in seeking redress. Our decision here will 

not affect ariy party to the contract directly, 

because cn this record there has not been any 

intent by a.ny party to sell property outside the 

preemptive clause, nor any third party seeking to 

be relieved from the preemptive clause. 

Har2y, 672 P.2d at 276. 

In the instant case, Parker sought a decl-aratory 

judgmelit under the Uniforr Declaratory Judgments Act that the 

right of first refusal was invalid a violation of the rule 

against perpetuities. The District Court granted Weed's and 
Brewster ' s rnoti.cn for summary judgment a~d Parker appea-led. 

As in Hardy, the record in the instant case discloses no 

pending sale cr offer for sa!.e, or purchase or offer t-o 

purchase the underlying property. No third party is before 

us challenging the clause's application to him. Instead, we 

zre being asked to render an advisory opinion. 

Our reasoning in Hardy applies with equal force to this 

appeal.. . No litigant before us is in immediate danger cf 

sustaining direct r from the preemptive 

clause. Therefore we do not have a justiciable 

controversy over which the judicial power to 

deternine real ccntroversies may be exercised. 

Broad language in the Uniform Declaratory Judgments 

Act, section 27-8-2101, et seq., MCA, may not be 

used as a platform for courts in this state to 

plunge into indefjnite amorphous ponds of contract 

interpretation. 

Hardy, 672 P.2d at 276. 

Therefore, we reverse the order of the Cistrict Court 

granting respondents ' motion for summary judgment to the 

extent that it may be c~nstrued to determine the rights of 

the parties under the agreement containing the right of first 

irefusal. The cause is remanded to the Oistrict Court with 

instructions to dismiss without pr 

hie Concur: 
/ Justices